>> you have not answered my question. john and i went hunting a few months ago, and he has a better shotgun than i have. under the regime proposed, what i have to go through a background check to buy his shotgun? >> i am not familiar with whether that would require the check. >> are you familiar with a scenario where a law-abiding citizen might need more than 10 rounds to protect their family? >> it makes it easier for individuals to commit grievous acts of violence. >> do you agree that mentally ill people should not have more than one bullet? >> yes.

>> do you agree that there may be mothers who need more than six? >> we need to be respectful of people's right to defend themselves -- >> the point is that i can envision a situation where, like in atlanta, someone broke into her home and she shot the guy 5 or 6 times and he was still able to get up and out the door. i don't think criminals will be limited by any capacity magazine size law, and if you start restricting the amount of the ten-shot limit in some circumstances, that may disadvantage law-abiding citizens and not do much to the criminal. on the number of people are prosecuted, how many people a year failed a background check? >> i believe in 2012 it was 80,000. >> how many were false positives? >> a small percentage. i am not certain. when you say "false positives," what do you mean?

>> you are entitled to a gun but the system kicks you out. do you know the percentages? >> it is a small, but i cannot give you a specific figure. >> do you believe that the best way to discourage criminal conduct is to make sure the prosecution is swift? >> it is part of it.

whether it is best, i am not certain. >> senator franken mentioned doing something about mental health and i agree with that. i was a prosecutor in my younger days, and if you knew you were likely to get caught and the punishment was severe, there was a good deterrent. do you agree? >> absolutely, yes. >> of the 80,000 who failed background checks, what percentage gets prosecuted? >> a small percentage. last year it was 44 cases. >> 44 is what percentage of 80,000? >> a very small percentage. lawyers don't do math well. [laughter]

>> congressmen don't, either. we're talking about expanding a system where the current system is 0000.something. i think we have our priorities wrong. >> senator feinstein. >> thank you for allowing me to sit on this subcommittee. as you know, i am not a member. thank you for your measured responses. it is very much appreciated. i would like to put in the record a letter written by mayors against illegal guns, signed by the mayors of boston and new york city, supported by 850 mayors of both political parties all around this country supported the assault weapons legislation and the ban on high capacity ammunition clips. there are very good quotations in this letter. i will not take the time to read them now, but as a former mayor, mayors see what happens on the streets, so i'm grateful for this endorsement and support. mr. united states attorney, to the best of my knowledge, the assault weapons legislation which existed from 1994 to 2004 was never struck down by any court in the land. is that your information as well? >> is, exactly, senator.

>> do you believe it was constitutional? >> yes. >> do you believe is possible to draft legislation which is reasonable which exempts over two dozen weapons but specifically concentrates on weapons designed for military use? >> i believe it is possible to craft a law consistent with the second amendment and heller decision that would be constitutional. >> 20 co-sponsors and myself have drafted this legislation.

i would like to ask that you take a look at it, and if you have problems with it, did you let us know. >> i will, senator. >> thank you very much, and thank you, mr. chairman. >> senator cornyn. >> thank you, mr. chairman. mr. heaphy, thank you for your service as a u.s. attorney in for being here today. want to join the other members of the committee in expressing my gratitude to the family members who are here today who have lost a loved one as a result of an act of violence. i believe we owe it to you not to engage in tokenism or symbolic acts, but rather, to try the best we can to address the causes and to come up with solutions, and at the same time respect the rights of law- abiding citizens to keep and bear arms is protected by the second amendment.

i believe is possible for us to do that. but i also believe it is important for us to look at the laws already on the books. there is already some discussion on this, and mr. heaphy, forgive me if i repeat it. in 2008, congress passed a provision that required that the states included in the background check database, people who were adjudicated mentally ill -- you are familiar with that law, are you, sir?

>> senator, i believe that is voluntary. we strongly encourage them, but unfortunately, it is still voluntary. >> why in the world would be made that optional? >> i don't know. we need to ensure that is relevant records are in the background check system. >> my understanding is that it is not being complied with. about 1.2 million records have been forwarded for inclusion in the nics criminal background check the system. that is largely the result of about 10 state efforts, and i am glad to say that texas is one of those that has the second- highest rate of sharing in the nation. don't you agree that it would be important to have individuals adjudicated mentally ill to have those records in the nics background data base? >> absolutely. i strongly agree with that. >> if the law is not mandatory now, do you agree it should be mandatory, and if it is not in force, do you believe it should be enforced?

>> i believe the way it is structured is that the attorney general holds aid to state law enforcement is states are not complying and putting mental health records in the system. there are incentives to do that, but as you said, it is spotty and not everyone has the texas approach and puts the records in. >> do you think it would be more reasonably calculated to protect innocent victims of gun crime and other actions that may be more symbolic and nature? >> i am not sure what would be more or less reasonably calculated, but i am certain if we don't have all relevant

records in the system, it undercuts the effectiveness on the background checks. >> i cannot resist asking you about this again -- people who lie on background checks, the record of prosecuting those individuals is pathetic. we need evidence to prove a crime was committed. if there was a mistaken -- statement on the form -- the common defense is i did not know. i did not know there was something in my background. that is sometimes credible. they can get the same weapon at a gun show without submitting a forum.

>> to say i have no conviction. >> the fact that it was false is not enough. it is a difficult case to prove. 37% result in a sentence of a year or less. the gun background check worked there. we focused on people that obtained firearms and used them. >> i know the u.s. attorney's office has limited resources. you have to play our doors -- you have to prioritize. i see my time is about up. i appreciate one of my constituents here today. she has a chilling story about losing her parents in an episode of mass violence in 1991 she has some important testimony for the committee. >> thank you, senator cornyn. >> thank you, mr. chairman. i want to express my appreciation for holding this hearing.

i want to thank you for your extraordinary service in one of the busiest districts in the country. i had your job several years ago and that was one of the best

jobs i ever had. thank you for your excellent service. i want to thank the newtown families that are here today. i want to express my regret at a statement that was made i think within the last 24 or 40 hours by lobbyists for the national rifle association who said his group was hoping that the "connecticut effect" would pass so that his group could be more effective in its lobbying. their presence today and tonight at the state of the union i think is a statement and a picture worth 1000 words that the connecticut effect will last and it will be a call to action. then ra lobbyists, and -- the nra lobbyist comment was callous and i call on the nra to reject

it. i think it is an insult to all of us in america and to the 26 families in newtown that directly suffered this loss. you're a law enforcer. >> i have been a career prosecutor. >> i appreciate you coming before us in that capacity. folks talk about existing laws. you often know that a crime has been committed and you know who has committed it, but you need more than that knowledge on your part. you need evidence to go into court and prove that. when the nra says that there hasn't been enough prosecutions, very often the reason is you do not have enough evidence. >> that is sometimes correct. >> we should do everything possible to enable more effective prosecutions under existing laws and under any new laws but focus on enforcement. let me ask you about the ban that currently exists.

people who are seriously ill. right now with respect to a very large number of fire arms purchases, about 40% in private sales or so-called gun shows sales, you have no way to get the evidence to enforce the existing law.

>> we have no evidence. >> the current law prohibits purchases of ammunition to those same categories of people. do you have any effective way of enforcing that law? >> it is to easy to get around the background checks. those guns are used with regularity our streets. >> the same is true with ammunition. there are no ammunition -- background checks whatsoever. you have no practical way to enforce that law. >> that is right. >> let me ask you about the second amendment and i think you have done a great job of describing that balance that applies to all constitutional rights. very often constitutional rights butt against each other.

>> that is life in a democracy. >> it manages to reconcile fundamental rights that sometimes art intentioned. >> that is right.

>> these proposals that have been made for reasonable regulations are perfectly consistent with everybody's right to have they done, go hunting because reasonable regulation are consistent and the genius of our constitution. >> just exactly right. the president and attorney general respect the second amendment and are not trying to remove the basic rate for people to own firearms. we are trying to tinker with the balance.

>> nobody has suggested that a criminal, convicted felon or drug addict or somebody mentally ill or a domestic violence abuser has a fundamental second amendment right to have a firearm. >> those act from their past remove the second amendment right to own a firearm. >> or to purchase ammunition. >> thank you, mr. chairman. my old friend and debating partner, professor larry tribe. happy to have you here. i want to make an observation. you said heller allows restrictions. he said you did not read the whole decision. the assault weapons ban is not a restriction but an absolute ban. i wanted to make that clear. the senator from california indicated the assault weapons ban was never stricken down as

unconstitutional. the fact of the matter is that expired before the heller decision. so who knows what would have happened if it was tested? the senator may be right on that. you've been an excellent witness and want to thank you for your career. the department of justice focuses on prosecuting people who evade the back rent check system and acquire weapons illegally. they did not focus those who attempt to purchase firearms but were unsuccessful.

criminals do not walk into a gun shop to buy weapons and submit themselves to a background check. they get them on the streets. >> that is exactly right. >> the people least likely to be caught by a background check. some on our side wonder why do we raise all this fuss about background checks when we have them in existence. i'm sure you're familiar with project that was launched in 1997 in richmond, virginia. it was an effort to enforce existing federal gun laws. residents were put on notice and all violations of firearms laws would be prosecuted. defendant's face five-year mandatory sentences. 372 persons were indicted and 440 guns were seized.

richmond realize a decrease in homicide and a 41% decrease firearm homicides. of any plans for similar efforts to enforce existing gun laws?

>> exile was very successful. take a great model for a working partnership. the attorney and atf and richmond police came together to focus on violent crime. was a huge disparity and that disparity has changed. more of those cases go prosecuted at the state level. there will get every bit of a sentence as we could get in a federal court. st. louis, illinois, has seen a spike in prosecutions. state and local authorities came together and decided we have to do something about east st. louis. that has led to an increase. we're still doing exile-type programs.

>> each of the killing tragedies in newtown or aurora or columbine. they were able to use their weapons of choice and passed background checks or avoided it. each time politicians say it will never happen again and they call for passing more laws. simply putting more loss on the books will not prevent individuals who are ill or evil from harming others? >> i wish i could assure this committee that we could pass a

law that would prevent -- we cannot do that. there will be dangerous people that continue to perpetrate acts of violence. we are trying to create more roadblocks. it is not going to be perfect. we are trying to make it more difficult. >> you have been an excellent witness. thank you, mr. chairman. >> thank you for your testimony. i will send you some follow-up questions. i like the second panel to please come to the table. the justice department is asking to put in letter into the record about the working relationship with our witness in the first panel, mr. heaphy. some senators have other meetings they are attending. on the floor of the senate, have votes on the violence against

women act and several amendments. i hope we're not interrupted or stopped but that would be the only reason. we have for a business that has to be taken care of. i'll ask the witnesses at the table to stand up, if they will. >> is your right hand please. your firm your testimony will be the truth, the whole truth, and nothing but the truth? >> the witness's answer it in the affirmative. i will read a brief background on each of the witnesses. laurence tribe is the carl m. loeb university professor at harvard law school where he has taught since 1968. he has written over 100 books and articles.

he clerked for the california justice and potter stewart. i will give him the floor after i introduced the other witnesses. our next witness is sandra wortham. she is testifying in a personal capacity today. she is responsible for the domestic violence-related training and work as an attorney with the circuit court of cook county.

thank you for being here. our next witness will be suzanna hupp. she served as a member of the texas house of representatives and is the author of "one woman's fight against gun control." she graduated with a degree in chiropractic medicine. thank you for being here. our next witness is charles cooper with cooper & kirk. he worked in the justice department civil rights division and in private practice. he received his law degree from the university of alabama. he clerked for justice rehnquist. last will be daniel webster. professor of health policy and management at johns hopkins school. he published over 70 articles and scientific journals which focused on gun violence or youth violence. his master's in public health from the university of michigan

and his doctorate from the johns hopkins school of public health. we are having a changing of the guard. i hope they can leave any quiet manner. i know you made a great personal

sacrifice to be with us here today. the floor is yours. >> thank you, mr. chairman. members of the committee, i am honored by your invitation that i testified. it is humbling to be here in the presence of so many victims of senseless gun violence and many others who have lost loved ones. when we recall the horror of learning that 21st grade students were slaughtered, every four days nearly 20 more children and more than 100 adults died in gun homicides around this country. we may not know their names but they were not anonymous or invisible to those who love them and will never hold them in their arms again. the question is whether sensible measures to reduce rampant gun violence, the violence that cut short all these lives is beyond our reach because of the second amendment and my answer to that is no.

nearly every constitutional expert including judge robert bork treated the second amendment as irrelevant to any personal rights to keep or bear arms. by the end of the last century, a different understanding has emerged, one focusing on individual self defense. i supported the new understanding and the supreme court made it the law of the land in 2008 and 2010. two decisions demolish the slippery slope theory of those who oppose all firearms regulations on the views that

once we permit new regulation at all we will be in fighting the government step-by-step to come ever closer to disarming the people, leaving only the police and military with firearms. the supreme court took stern policy choices off the table and cleared the path for reasonable regulations to be enacted without fear those choices would open the door to a limited government control or be in peril by exaggerated interpretations of the second amendment. "there is no longer any basis for such doomsday proclamations." justice elliott said it at the end of this opinion -- justice scalia said it at the end of his opinion.

the court was explicit in saying what some of those tools include. they include conditions and qualifications on the transfer of firearms to keep them out of dangerous hands. they include long standing measures to keep firearms out sensitive places. they include complete bans of firearms that are "not typically possessed by law abiding citizens." and firearms that are dangerous such as m-16 rifles and the like. they include other regulations designed to protect public safety without cutting into the core rights that the second amendment protects.

those other regulations encompass bans on a little straw purchases and gun trafficking, both of which can frustrate any system of background checks for gun regulation. universal background checks or registration systems. since with loopholes and less than universal coverage are calculated to be invaded by the very people who have no -- people we cannot entrust with those weapons. ones that do not trip the second amendment's trigger have to include bans on high-capacity magazines and on lethal weapons that someone can keep firing for 10 rounds or more without reloading.

banning those weapons is people a chance to escape and is the police a chance to interrupt the slaughter. it also covers bans on weapons designed for military use rather than for lawful civilian uses. the court did not say such regulations would survive second amendment scrutiny. it said heller would not even "cast a shadow of doubt on such measures should they be considered in the future." it's will completely solve -- should not think this will solve the epidemic of gun violence in america. more will be needed. pilot video games, fell most that will far -- films that

glorify murder and mayhem. we'll have the blood of innocent human beings on our hands and will be searched the constitution in the process. our constitution does not make the perfect the enemy of the good. it is not a suicide pact that condemns us to paralysis in the face of a national crisis of domestic bloodshed. thank you very much. >> thank you. sandra wortham. >> good morning, chairman durbin. t an honor to speak today -- it is and honor to speak today.

i am an attorney. i would like to talk about life and the impact this has on me and the families here today. i like to go back to may 19, 2010. i was having a good day. i went to line-dancing with my mother. we went out and had a good time. i got a call from my mother on my way home. that's not unusual. this call was different. said, "sandy, come home." "they tried to rob him." we were raised in a good family. our parents taught us we could do anything or be anything.

we had a responsibility to the community. that is how thomas lived his life. served two tours of duty in iraq. he was also a police officer. earlier that we, thomas traveled here. then he traveled to new york city to run into a race in honor of a police officer who had been killed the year before. on that evening, thomas had gone to my parents' house to show them pictures of police week activity. he finished and they ate dinner and he went to leave. my father went with him to the door to watch him out.

two men approached thomas as he went to go on his motorcycle. thomas was a police officer and so he was armed. he told them he was a police officer. my dad was also armed. went in the house to get the gun. there was gunfire and between the offenders and my brother. i got the call and i had no idea how bad this was. i knew i had to get home. ahead of me, other was stopped. traffic was stopped. i got out and started to run. and ambulance past me.

i was running down the street. it was like a movie. i know now that thomas was in the ambulance because he was shot. i got to the house. we waited and prayed a lot. thomas died. i did an interview at the week before because there had been two shootings across to my house. in the interview, i will read the direct quotation. "when people think of the south side of chicago, they think violence." he went on to say that, "we are going to fix it." we still believe we can fix it.

this hearing has been called in ways we can protect our communities. i'm so sorry that some people left. i am confused as to where we're having disagreements about this. to me, this is not about taking away the lawful right to own guns. we're not anti-gun people. that is how i was raised. but they were trained. i respect the rights provided by our constitution.

find it hard to believe our founders-- it is not about the right to lawfully own guns. this is keeping guns out of the hands of people like people who killed my brother. they would not have been able to get guns at a gun store. they bought the guns on the street. they're gonna do not arrive in chicago on its own. it was traffic from a pawnshop in mississippi. a gun trafficker went to mississippi and bought multiple handguns and brought those guns to chicago to sell to gang members. that is a huge problem we're talking about.

i cannot accept that we cannot fix that problem. many, many criminals obtain their guns through street purchases and we have an opportunity to address that problem. law-abiding citizens should not be disturbed by the proposals here today. we speak about the constitution and all the rights afforded by the constitution, we should remember the words of another document. we talked about life, liberty, and the pursuit of happiness. those things were taken away from thomas when he was 30. we talk about lawful gun ownership.

my brother and father owned a gun. that did not prevent thomas' murder. i think in excess pro-law abiding citizens. i'm not here to say any one law would have changed what happened to thomas. i think we can do better. this is about our country. we have a system to affect change. thank you. >> thank you for your testimony. i still remember your brothers service. was an amazing individual. it is sad that we lost him. thank you so much.

miss hupp? >> i am speaking for myself today. i wanted to mention when you opened the proceedings, you ask all the victims of gun violence to stand and i hesitated. i don't view myself as a victim of gun violence but of a maniac who happen to use a gun as a tool. i view myself as a victim of the legislators at the time that left me defenseless. that is why i hesitated. i did not grow up in a house with guns. i was given a gun and taught how to use it. i had a patient in houston and he convinced me to carry the gun, cho at that time was illegal in the state of texas.

"you need to carry the weapon." several years later my parents and not when to have lunch with a friend of mine. we had finished eating when this guy drove a pickup trucks and became crashing in and ended up 15 feet from us. we thought it was an accident. then we heard gunshots. my father and i got down on the floor and turned the table up. the shooting continued. at that time in 1991 we were not seeing mass shootings. i thought maybe it was a hit.

but the shooting continued. it took 45 seconds to realize the guy was simply going to walk around, take aim, pulled the trigger, go to the next person, take game, pulled the trigger. he was executing people. i thought, i have this guy. i reach for the purse. he was up. everybody else was down. i had made the stupidest decision of my life. i began leaving my gun in my car. i didn't want to get caught with my gun. i remember thinking, "what do i do now?" my dad said, "i got to do something." he went at the guy.

a man with a gun in a crowded room has complete control. my dad covered half the distance and the guy turned and shot him in the chest. one that went down about 7 feet from me. he was still alive and still conscious. saw the wound and basically wrote him off. the gunmen went off to my left. somebody broke out a window. i heard that crash. people were getting out. i stood up and grabbed my mother and said, come on, got to get out of here. i made it out the back window. friends said, "thank god you're all right."

i realized my mother did not follow me out. the police officer, will were patients of mine. they filled and the gaps. they said they were one building away at a conference. the manager of the hotel did not want them to be wearing their guns and potentially the offending any customers. she asked them to leave their guns in their cars. precious minutes were lost.

they did not know the gunman was. they said they did see a woman on her knees cradling a man. they said they watch this man walked up to her and she looked up at him. put a gun to her head. he pulled the trigger. that's how they knew who the gunman was. all they had to do was fired a gunshot in the ceiling. he put a bullet in his own head. 23 people were killed that day, including my parents.

mom wasn't going anywhere without dad. the jets have their wedding anniversary -- they just had their wedding anniversary. you might think i would be mad at the guy that did that. i was mad at my legislators because i believe they legislated me out of the right to protect myself and my family. would rather be sitting in jail and having my parents alive. >> thank you for much. we have six minutes left on this roll call. i cannot believe a senator will ask daniel cooper to wait. we have three votes.

i'm sorry. mr. cooper. >> thank you very much. i am honored to be here to discuss this important subject matter and share my thoughts with you. i'm humbled to hear the emotional testimony we have from the victim's of senseless violence and makes it difficult to return to try it legal subject matter, but that is my task. the recent decisions provide guidance for applying the second amendment. it is important to identify their principles established by the decisions. a right that belongs to all americans. the inherent right to to self- defense is the central component of the second amendment right itself. it is entitled to no less respect than other fundamental

rights protected by the bill of rights. it is not to be treated as a second-class right. the second amendment is enshrined with the scope that was understood to have when the people adopted it whether future judges think that scope too broad. this is an express admonition that all officials are oath- bound to obey the second amendment as it was understood in 1791. the line is not to be established by balancing the rights protected by the second amendment against competing government interests.

this balance has already been struck. let's recall the text of the second amendment. the right of the people to keep and bear arms shall not be infringed. it specifically protect the possession and use of a particular kind of personal property -- arms. there are certain arms that responsible adult citizens have a right to acquire, possess, and use.

the second amendment's court protection is no less absolute than the first amendment's protection of the expression of unpopular opinions. the second amendment is no different from the first amendment. it elevates above all other interests the right of law- abiding citizens to use arms in defense of hearth and home. let me repeat that -- above all other interests to use arms in defense of hearth and home. the government may number prevent a responsible citizen from keeping a firearm in his bedside table drawer then in a prevent him from keeping a copy of the collected works of shakespeare or his bible or his koran and that draw. what arms are protected by the second amendment?

those weapons that are of the kind in common use for lawful purposes like self-defense. the second amendment does not protect those weapons by law- abiding citizens for lawful purposes. applying that test, heller struck down the district of columbia's handgun ban. it amounted to a prohibition of an entire class of arms that is chosen by society for the all- purpose of self-defense. the constitutionality turns on whether the bans are of the kind

in common use for lawful purposes in this nation. standard magazines holding more than 10 rounds are by reasonable nature in common use in the united states. s-150 outlaws firearms and standard magazines of the kind for lawful purposes it is unconstitutional. if one were to apply a balancing test, the ban on automatic assault firearms could not pass even intermediate scrutiny. my time is up and hopefully i can address these points further in the questions and answers.

>> thank you for your patience. we'll stand in recess and i will return as quickly as i can. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013]>> next, your calls and comments on "washington journal." then, harold rogers of kentucky. and, president obama's state of the union address and the republican response from marco rubio. >> we have a habit in this country of glossing over presidents. we have decided that some people are bald eagles. they all have to be treated as if they are symbols of the country. what that means is you have a smoothing over of their rough edges. there is a feeling among modern presidents that they have a right to a certain veneration.

that generation will be located in their presidential outlook. even if they are gone, their children and former allies, their lieutenants who live longer, they continue this. in many ways, they are even more ferociously committed to the legacy, not only because it involves them, big -- but because the old man is gone. the problem is, what does the government do, because it is responsible for these libraries, when you have a flat president? >> are two of our conversation with timothy natalli. tonight at 8:00 p.m., on c- span's "q&a." this morning, a political roundtable with david winston and steve mcmahon on issues facing contracts -- congress, facing contracts -- congress, including sequestration and